No. 15-666
In the Supreme Court of the United States
_________________
TAYLOR BELL,
v.
Petitioner,
ITAWAMBA COUNTY SCHOOL BOARD,
Respondent.
_________________
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Fifth Circuit
________________
BRIEF OF MISSISSIPPI CENTER FOR JUSTICE
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
________________
KIMBERLY JONES MERCHANT
BETH L. ORLANSKY
MISSISSIPPI CENTER FOR
JUSTICE
P.O. Box 191
Indianola, MS 38751
(662) 887-6570
DANIEL R. WALFISH
Counsel of Record
WILL B. DENKER
SAGIV Y. EDELMAN
MILBANK, TWEED, HADLEY
& MCCLOY LLP
28 Liberty Street
New York, NY 10005
(212) 530-5000
dwalfish@milbank.com
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF THE AMICUS CURIAE.................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ............................................................... 1
ARGUMENT ............................................................... 3
I.
WHETHER AND HOW SCHOOLS MAY
DISCIPLINE STUDENTS FOR OFFCAMPUS SPEECH IS AN IMPORTANT
AND RECURRING QUESTION THAT
SHOULD BE SETTLED BY THIS
COURT ................................................................ 3
II.
THE DECISION BELOW GIVES
SCHOOL DISTRICTS UNDUE
LICENSE TO PUNISH STUDENTS
FOR THEIR SPEECH AND
THREATENS TO EXACERBATE
TROUBLING TRENDS IN SCHOOL
DISCIPLINE ....................................................... 7
CONCLUSION .......................................................... 14
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. United States,
250 U.S. 616 (1919) ................................................ 5
Ambach v. Norwick,
441 U.S. 68 (1969) .................................................. 5
Cohen v. California,
403 U.S. 15 (1971) .................................................. 4
Cox v. Louisiana,
379 U.S. 536 (1965) ................................................ 3
Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260 (1988) ................................................ 5
J.S. v. Blue Mountain Sch. Dist.,
650 F.3d 915 (3d Cir. 2011) ........................... 6, 7, 8
Layshock v. Hermitage Sch. Dist.,
650 F.3d 205 (3d Cir. 2011) ......................... 6, 9, 11
Saxe v. State College Area Sch. Dist.,
240 F.3d 200 (3d Cir. 2001) ................................... 3
Texas v. Johnson,
491 U.S. 397 (1989) ................................................ 3
Tinker v. Des Moines Indep. Cty. Sch.
Dist.,
393 U.S. 503 (1969) ..................................... passim
iii
TABLE OF AUTHORITIES—cont’d
Page(s)
Watts v. United States,
394 U.S. 705 (1969) ................................................ 4
Statutes and Rules
SUP. CT. R. 10(c)........................................................... 6
Other Authorities
American Civil Liberties Union & ACLU of
Mississippi, Missing the Mark:
Alternative Schools in the State of
Mississippi (Feb. 2009),
https://www.aclu.org/files/pdfs/racialjustic
e/missingthemark_report.pdf .............................. 12
Alan Ginsburg et al., Absences Add Up: How
School Attendance Influences Student
Success, ATTENDANCE WORKS (Aug. 2014),
http://tinyurl.com/nje2lbx .................................... 11
Allan Porowski et al., Disproportionality in
School Discipline: An Assessment of
Trends in Maryland, U.S. DEPT. OF EDUC.,
INST. OF EDUC. SCIENCES (2014), available
at http://ies.ed.gov/ncee/edlabs/
projects/project.asp?projectID=365 ..................... 13
iv
TABLE OF AUTHORITIES—cont’d
Page(s)
American Psychological Association Zero
Tolerance Task Force, Are Zero Tolerance
Policies Effective in the Schools? (Aug. 9,
2006),
https://www.apa.org/pubs/info/reports/zer
o-tolerance-report.pdf (original version) ............. 13
American Psychological Association Zero
Tolerance Task Force, Are Zero Tolerance
Policies Effective in the Schools?, 63 AM.
PSYCHOLOGIST 852 (Dec. 2008) ................ 10, 11, 13
Center for Civil Rights Remedies, Are We
Closing the School Discipline Gap? (Feb.
2015), http://tinyurl.com/n5r57c7 .................. 10, 13
Council of State Governments Justice
Center, Breaking Schools’ Rules: A
Statewide Study of How School Discipline
Relates to Students’ Success and Juvenile
Justice Involvement (July 2011),
https://csgjusticecenter.org/wp-content/
uploads/2012/08/Breaking_Schools_
Rules_Report_Final.pdf ............................... passim
Education Law Center-PA, Improving
“Alternative Education for Disruptive
Youth” in Pennsylvania (Mar. 2010),
http://www.elc-pa.org/wpcontent/uploads/2013/12/ELC_AltEdPA_Full
Report_03_2010.pdf ............................................. 12
v
TABLE OF AUTHORITIES—cont’d
Page(s)
Lance Lochner & Enrico Moretti, The Effect
of Education on Crime: Evidence from
Prison Inmates, Arrests, and Self Reports, 94 A. ECON. REV. 155 (Oct. 2003). ............. 11
Mississippi Center for Justice,
Overrepresented and Underserved: The
Impact of School Discipline on African
American Students in Mississippi
(forthcoming 2016) ............................................... 13
Russell J. Skiba & M. Karega Rausch, Zero
Tolerance, Suspension, and Expulsion:
Questions of Equity and Effectiveness, in
Handbook of Classroom Management
1063-1089 (Carolyn M. Evertson & Carol
S. Weinstein eds., 2006), available at
http://www.indiana.edu/~equity/
docs/Zero_Tolerance_Effectiveness.pdf ............... 10
Russell Skiba et al., Consistent Removal:
Contributions of School Discipline to the
School-Prison Pipeline (May 2003),
http://varj.onefireplace.org/Resources/Doc
uments/Consistent%20Removal.pdf.................... 11
Texas Appleseed, Texas’ School-to-Prison
Pipeline: Dropout to Incarceration (Oct.
2007), http://tinyurl.com/ocvk6qe ........................ 12
vi
TABLE OF AUTHORITIES—cont’d
Page(s)
U.S. Dept. of Justice & U.S. Dept. of Educ.,
Dear Colleague Letter on the
Nondiscriminatory Administration of
School Discipline (Jan. 8, 2014)................... passim
BRIEF OF MISSISSIPPI CENTER FOR JUSTICE
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
INTEREST OF THE AMICUS CURIAE1
The Mississippi Center for Justice (“MCJ”) is a
nonprofit, public interest law firm committed to advancing racial and economic justice. MCJ was established in June 2002 in response to the urgent need
for advocacy on behalf of low-income people and
communities of color; to address the disenfranchisement of blacks, poor whites, Hispanics, and persons
with disabilities in Mississippi; and to improve opportunities for low-income, rural, and minority communities. Among MCJ’s concerns is ensuring that
Mississippi’s students have access to a quality education.
INTRODUCTION AND
SUMMARY OF ARGUMENT
Amicus MCJ fights unjust suspensions and expulsions — a phenomenon with enormous but underappreciated social ramifications — to keep students
where they belong: In the classroom. In that regard,
MCJ has an interest in seeing that school districts
impose discipline that (i) complies with constitution1 Counsel of record for all parties received timely notice of amicus Mississippi Center for Justice’s intent to file this brief. Respondent’s written consent to the filing of this brief is being
submitted herewith. Petitioner lodged a blanket consent to the
filing of amicus briefs. No counsel for a party authored this
brief in whole or in part, and no such counsel or party made a
monetary contribution intended to fund the preparation or
submission of this brief. No person other than the amicus curiae, its members, or its counsel made a monetary contribution
intended to fund its preparation or submission.
2
al protections; (ii) is governed by clear standards rather than caprice or unsubstantiated speculation;
and (iii) contributes to schools’ educational mission,
rather than detracts from it. This case implicates all
three imperatives: Taylor Bell, a high school senior
with a virtually spotless disciplinary record, was
consigned to a scholastic detention center for six
weeks as punishment for exercising his First
Amendment rights when he posted to the Internet a
rap song that he had recorded on his own time and
away from school, addressing teacher misconduct
that several classmates told him about. Amicus urges this Court to grant review and issue a clear pronouncement on whether and in what circumstances a
public school may discipline a student for off-campus
speech.
The court of appeals believed that Tinker v. Des
Moines Independent County School District, 393 U.S.
503 (1969), licensed Respondent (“Itawamba”) to
punish Bell for the invective of several of his lyrics.
But this Court has never said that Tinker applies to
off-campus speech, much less explained how to apply
it in the Internet age. The result has been widespread confusion and disagreement within and
among the lower courts in an area that implicates
fundamental rights as well as the basic mission and
role of schools in society. This case thus squarely
presents a question that has not been, but emphatically should be, settled by this Court.
Without this Court’s intervention, the national
confusion generally, and the permissive approach of
the Fifth Circuit in particular, invites school boards
to impose punishment based on subjective viewpoints as opposed to the even-handed application of
clear criteria. Such potential abuse is of particular
3
concern to amicus in light of nationwide pathologies
in school discipline: Students are being punished
disproportionately (as Bell was), inconsistently
across races, and in counterproductive ways that
contribute to a troubling phenomenon known as the
“school-to-prison” pipeline. This case and others like
it are therefore about much more than pure principle.
ARGUMENT
I.
WHETHER AND HOW SCHOOLS MAY DISCIPLINE STUDENTS FOR OFF-CAMPUS
SPEECH
IS
AN
IMPORTANT
AND
RECURRING QUESTION THAT SHOULD BE
SETTLED BY THIS COURT
A. Bell created his song to express his dismay
about, and raise awareness of, misconduct that he
felt would be ignored had he reported it to school officials. Pet. App. 7a. The song criticized specific
teachers and, implicitly, the school. But protected
“‘[s]peech is often provocative and challenging. It
may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an idea. This is why freedom of speech is
protected against . . . punishment. . . . [T]he alternative would lead to standardization of ideas either by
legislatures, courts, or dominant political or community groups.’” Cox v. Louisiana, 379 U.S. 536, 552
(1965) (quoting Terminiello v. Chicago, 337 U.S. 1, 45 (1949)) (emphasis added; internal ellipses omitted);
accord Texas v. Johnson, 491 U.S. 397, 408-09
(1989); see also Saxe v. State College Area Sch. Dist.,
240 F.3d 200, 215 (3d Cir. 2001) (Alito, J.) (“[T]he
mere fact that someone might take offense at the
content of speech is not sufficient justification for
prohibiting it.”).
4
The en banc majority, which described Bell’s lyrics as “incredibly profane and vulgar,” Pet. App. 5a,
lost sight of the fact that it is “often true” — here, literally so — “that one man’s vulgarity is another’s
lyric,” Cohen v. California, 403 U.S. 15 (1971). The
majority seems actually to have been carried away
by its own distaste for Bell’s speech. Pet. App. 36a
(“[T]he real tragedy in this instance is that a highschool student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined.”).
The school district did not marshal a shred of evidence of a threat or even any disruption at the proceedings convened to punish Bell. Nor does there
appear to have been any such evidence at the time.
To the contrary: Bell was allowed to return to school
the next school day after being confronted about his
song, and was allowed to remain there until his bus
arrived, despite having been informed that he was
suspended. See Pet. App. 124a-125a. The school did
not contact law enforcement, or take any other security measures. Id. at 97a. To be sure, even though
one coach later testified that the song was “just a
rap,” id. at 131a, the other said he felt “scared,” id. at
12a. But the second coach did not say who he was
scared of (i.e., Bell or others in the community learning of the allegations against him), and in any case
this testimony was all after the fact, in the district
court, and sheds no light on the basis of the school
district’s decision.
Without any serious suggestion that Bell issued
a “true threat,” cf. Watts v. United States, 394 U.S.
705 (1969), and lacking contemporaneous evidence of
disruption, the judges who sided with the school district were forced to come up with a new, more per-
5
missive approach supposedly based on Tinker —
even though the speech occurred off campus and this
Court has never held that Tinker or any of the
Court’s other school-speech precedents applies to offcampus speech.
Given the ubiquity of online “social media” and
students’ widespread use of it, the Fifth Circuit’s decision risks muzzling students wherever and whenever. The effect of the ruling below — giving school
districts enormous power to punish students for their
off-hours Internet-based activity — will be to squelch
dissenting opinions on matters of concern to the
community for fear of reprisal, to stifle artistic expression for fear that it may be misconstrued, and to
silence students just as they are beginning to find
their voice.2
B. If that is to be the result, it should be because
this Court, and not the courts of appeals, issued a
clear pronouncement. The applicability of Tinker to
2 The First Amendment is supposed to guard the “marketplace
of ideas” against the suppression of counter-majoritarian
speech. See Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). In the same vein, public education is
designed to “inculcat[e] fundamental values necessary to the
maintenance of a democratic political system[.]” Ambach v.
Norwick, 441 U.S. 68, 77 (1969). Here, Itawamba did just the
opposite: The only “civics lesson,” see Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 277 (1988) (Brennan, J., dissenting),
it imparted was that students should be wary of speaking their
minds in ways that might be sensitive or unpopular — or just
critical of the school. Indeed, the record suggests that Bell’s
fellow students got the message. See Pet. App. 98a (Dennis, J.,
dissenting) (summarizing testimony that “most of the talk
amongst students [at Bell’s school] had not been about Bell’s
song but rather about his suspension and transfer to alternative school.”).
6
off-campus speech in the Internet age is “an important question of federal law that has not been, but
should be, settled by this Court.” SUP. CT. R. 10(c).
This Court’s school-speech jurisprudence did not address, and is ill-suited for, contemporary technology.
More than forty years have passed since Tinker, and
the lower courts are now struggling with whether
and how to apply it to means of communication not
even imagined by that Court. Absent this Court’s
intervention, lower courts will continue to issue conflicting decisions that leave the law unsettled.
This case makes the point: It prompted the Fifth
Circuit to convene an en banc court that generated
three concurrences and four dissents. Judge Prado
observed that “off-campus online student speech is a
poor fit for the current strictures of First Amendment doctrine,” and expressed his “hope that the Supreme Court will soon give courts the necessary
guidance to resolve these difficult cases.” Pet. App.
105a (Prado, J., dissenting). Judge Costa similarly
invited clarity: “[T]his court or the higher one will
need to provide clear guidance for students, teachers,
and school administrators that balances students’
First Amendment rights that Tinker rightly recognized with the vital need to foster a school environment conducive to learning.” Id. at 44a (Costa, J.,
concurring).
The Third Circuit fared no better when it faced
similar questions. See Layshock v. Hermitage Sch.
Dist., 650 F.3d 205, (3d Cir. 2011) (en banc); J.S. v.
Blue Mountain Sch. Dist., 650 F.3d 915, 940 (3d Cir.
2011) (en banc). Two cases that “raise[d] nearly
identical First Amendment issues” were taken en
banc at the same time, argued on the same day, and
decided simultaneously. Layshock, 650 F.3d at 219
n.1 (Jordan, J., concurring). The Third Circuit nev-
7
ertheless issued “competing opinions” — its fifteen
judges were almost as fractured as the Fifth Circuit’s
sixteen judges — that “thr[ew] into question” the
governing law. Id. at 220.
Lower courts are begging this Court to speak
“clearly, succinctly, and unequivocally.” Pet. App.
39a (Jolly, J., concurring). Given the importance of
the issue, the Court should answer their call.
II. THE DECISION BELOW GIVES SCHOOL DISTRICTS UNDUE LICENSE TO PUNISH STUDENTS
FOR
THEIR
SPEECH
AND
THREATENS TO EXACERBATE TROUBLING
TRENDS IN SCHOOL DISCIPLINE
A. Amicus believes that schools must impose
discipline fairly and evenhandedly. To that end, it is
essential that schools base their punishment on
clear, articulable standards, rather than on whim or
personal predilection. Amicus is concerned that the
ruling below provides few meaningful checks on a
school board’s ability to punish a student for his or
her off-campus speech, and, as the en banc court’s
lead dissent explained, fails to give “adequate notice
of when [a student’s] off-campus speech crosses the
critical line between protected and punishable expressions.” Pet. App. 74a.
First, the majority’s focus on whether a student
intended for off-campus speech to reach the ears of
members of the school community invites mischief.
Id. As a Third Circuit five-judge concurrence explained, “speech originating off campus does not mutate into on-campus speech simply because it foreseeably makes its way onto campus. A bare foreseeability standard could be stretched too far, and would
risk ensnaring any off-campus expression that happened to discuss school-related matters.” J.S., 650
8
F.3d at 940 (Smith, J., concurring) (citations omitted). Only through such “mutation” could Bell’s song
— which he recorded at a professional studio and
disseminated using his personal computer at home,
posted to a medium that could not be accessed on
campus, and did not play or perform at school — be
considered cause for punishment by a school. Pet.
App. 122a-123a.
Second, the majority’s focus on whether school officials “reasonably could find” artistic expression
“threatening, harassing, and intimidating,” Pet. App.
19a, 30a (itself a gloss on Tinker’s requirement of a
reasonable forecast of a substantial disruption), also
invites decisions based on unduly subjective sensibilities. It is all too easy under this framework for a
school to silence expression that it disagrees with or
dislikes, instead of having to base its decision on the
existence of objective evidence of a bona fide disruption to the education environment. Bell’s case highlights the problem: He was suspended for six weeks
for a song that caused no real disruption. Id. at 98a
& n.23.
B. In fact, Bell’s case is an object lesson in the
pathologies of school discipline — pathologies that
make further review of the decision below that much
more pressing. The argument is sometimes made
that schools should be given a freer hand in disciplining students for their speech so as to protect the educational environment. See, e.g., Pet. App. 22a-23a.
What happened here, though, is that far from fulfilling its mission to protect students, Itawamba actually abdicated its responsibility to provide a productive learning environment for a non-violent student.
9
Disproportionate punishment in schools is a major problem across the country. The U.S. Departments of Education and Justice recently observed
that schools are using exclusionary discipline — inschool and out-of-school suspensions, expulsions, or
referrals to law enforcement authorities — with increasing frequency.3 Here, Bell was consigned to an
“alternative school” — an institution designed for
students with real behavior problems — for an extended period of time just for writing and posting a
song. There was no suggestion that Bell had any violent background or propensity, or posed any danger
to anyone.
Bell’s story is not unique. In Layshock, for example, the plaintiff student “was classified as a gifted student, was enrolled in Advanced Placement
classes, and had won awards at interstate scholastic
competitions.” 650 F.3d at 210 & n.6. For creating
an Internet “parody profile” of his principal, he was
sentenced to spend most of the second half of the
school year in an Alternative Education Program
“reserved for students with behavior . . . problems
who are unable to function in a regular classroom.”
Id. This prompted a unanimous en banc court to
wonder “how the School District determined that it
was appropriate to place such a student in a program
designed for students who could not function in a
classroom.” Id.
A growing body of research calls the value of
school suspensions into question. Most suspensions
3 U.S. Dept. of Justice & U.S. Dept. of Educ., Dear Colleague
Letter on the Nondiscriminatory Administration of School Discipline 4 (Jan. 8, 2014) (hereinafter Dear Colleague Letter).
10
are for nonviolent infractions,4 making it difficult to
argue that suspensions make schools safer. In fact,
according to the American Psychological Association
(“APA”), the data do not show a clear link between,
on the one hand, the use of suspension, expulsion, or
so-called “zero-tolerance” policies — under which often severely punitive “predetermined consequences”
follow regardless of the gravity of misbehavior, context, or mitigating circumstances — and, on the other, improvements in student behavior or school safety.5 Instead, studies have shown that the schools
that frequently suspend and expel students have
worse school climates and governance structures,
spend a disproportionate amount of time on disciplinary matters, and, even controlling for demographic
factors, fare worse on state accountability tests.6
4 See Center for Civil Rights Remedies, Are We Closing the
School Discipline Gap?, 10 & n.14 (Feb. 2015),
http://tinyurl.com/n5r57c7 (hereinafter Closing the School Discipline Gap); see also Council of State Governments Justice
Center, Breaking Schools’ Rules: A Statewide Study of How
School Discipline Relates to Students’ Success and Juvenile
Justice
Involvement
37-38
(July
2011),
https://csgjusticecenter.org/wp-content/uploads/2012/08/
Breaking_Schools_Rules_Report_Final.pdf (hereinafter Breaking Schools’ Rules) (a study of public school suspensions in Texas found that more than 90% of all suspensions were discretionary suspensions for violations of school codes of conduct).
5 APA Zero Tolerance Task Force, Are Zero Tolerance Policies
Effective in the Schools?, 63 AM. PSYCHOLOGIST 852, 854 (Dec.
2008) (hereinafter APA, Zero Tolerance Policies).
6 Id.; Russell J. Skiba & M. Karega Rausch, Zero Tolerance,
Suspension, and Expulsion: Questions of Equity and Effectiveness, in HANDBOOK OF CLASSROOM MANAGEMENT 1063-1089,
1072 (Carolyn M. Evertson & Carol S. Weinstein eds., 2006),
at
http://www.indiana.edu/~equity/docs/Zero_
available
11
Exclusionary discipline is also associated with an increase in behavioral problems, academic difficulty,
detachment from school, and dropout rates.7
C. Extreme school punishments are also intertwined with the phenomenon known as the “schoolto-prison-pipeline.” Time spent out of school (resulting, for example, from a suspension) is a significant
factor in predicting juvenile delinquency and incarceration.8 Suspensions, as noted above, are associated with increased drop-out rates, and students who
drop out of school are more likely to be incarcerated.9
Alternative schools, like the one to which Bell
and the Layshock plaintiff were consigned, have
problems of their own. A 2009 report by the American Civil Liberties Union (“ACLU”) and the ACLU of
Mississippi concluded that Mississippi’s alternative
[Footnote continued from previous page]
Tolerance_Effectiveness.pdf; see also Alan Ginsburg et al., Ab-
sences Add Up: How School Attendance Influences Student
Success
3,
ATTENDANCE
WORKS
(Aug.
2014),
http://tinyurl.com/nje2lbx (finding that students that had
missed three or more days in the month before taking the National Assessment of Educational Progress had lower average
scores than students with fewer absences).
7 APA, Zero Tolerance Policies, at 854; Breaking Schools’ Rules
59; Dear Colleague Letter 4 (noting that studies demonstrate a
correlation between exclusionary discipline and “an array of
serious educational, economic, and social problems.”).
8 Russell Skiba et al., Consistent Removal: Contributions of
School Discipline to the School-Prison Pipeline 27-28 (May
2003), at http://varj.onefireplace.org/Resources/Documents/
Consistent%20Removal.pdf.
9 Lance Lochner & Enrico Moretti, The Effect of Education on
Crime: Evidence from Prison Inmates, Arrests, and Self Reports, 94 A. ECON. REV. 155 (Oct. 2003).
12
schools “[t]oo often . . . hurt the very students they
are meant to help.”10 They overemphasized punishment at the expense of remediation; lacked the same
academic standards as “mainstream” schools; and
were inadequately staffed.11 Similar phenomena exist in other states.12
D. There are documented racial disparities in
the imposition of school discipline — another reason
why clear standards and even-handed treatment are
so important. Studies reveal that where discretionary punishment is concerned, black students are
more likely than white students to be punished for
the same offense.13 Investigations conducted by the
U.S. Departments of Education and Justice “revealed
racial discrimination in the administration of stu10 ACLU & ACLU of Mississippi, Missing the Mark: Alternative Schools in the State of Mississippi, 6 (Feb. 2009),
https://www.aclu.org/files/pdfs/racialjustice/missingthemark_
report.pdf.
11 See id. at 8.
12 A study of Texas’s Disciplinary Alternative Education Programs (“DAEPs”), for example, revealed that many students in
DAEPs did not receive teacher-led instruction but instead were
given packets of worksheets to complete. Not every DAEP had
a library, and students were seldom provided access to advanced curriculum and could not take their textbooks home.
Texas Appleseed, Texas’ School-to-Prison Pipeline: Dropout to
Incarceration 31-32 (Oct. 2007), http://tinyurl.com/ocvk6qe. A
2010 report on Pennsylvania’s program of alternative education
for disruptive youth identified similar problems. See Education
Law Center-PA, Improving “Alternative Education for Disruptive Youth” in Pennsylvania, (Mar. 2010), http://www.elcpa.org/wp-content/uploads/2013/12/
ELC_AltEdPA_FullReport_03_2010.pdf.
13 Breaking Schools’ Rules 44-45; see also Dear Colleague Letter 4 (collecting sources).
13
dent discipline” and “found cases where AfricanAmerican students were disciplined more harshly
and more frequently because of their race than similarly situated white students.”14 This discrepancy is
likely due at least in part to the implementation of
zero-tolerance disciplinary policies.15
Regardless of whether Taylor Bell’s punishment would have been any different had he been
white, the fact remains that black students suffer
from inequitable disciplinary treatment across the
14 Dear Colleague Letter 4; see also MCJ, Overrepresented and
Underserved: The Impact of School Discipline on African American Students in Mississippi 21 (forthcoming 2016) (finding
that, within a sample of demographically diverse Mississippi
school districts, black students were more than three times as
likely to receive an out-of-school suspension as white students);
Allan Porowski et al., Disproportionality in School Discipline:
An Assessment of Trends in Maryland 9, U.S. DEPT. OF EDUC.,
INST. OF EDUC. SCIENCES (2014), available at http://ies.ed.gov/
ncee/edlabs/projects/project.asp?projectID=365 (finding that
black students experienced higher rates of out-of-school suspension than white students for the same infractions); Breaking
Schools’ Rules 5 (finding that black students were almost three
times more likely than white students to receive an out-ofschool suspension for their first disciplinary violation).
15 Zero-tolerance policies were first implemented in the early
1990s. See APA, Zero Tolerance Policies, at 852. In 1988-1989,
10% of black students and 4% of white students were suspended; in 2011-2012, 16% of black students and 5% of white students were suspended. Closing the School Discipline Gap 5.
And “[d]ata since 1995 indicate that the application of zero tolerance policies does not appear to have reduced, and indeed
may have exacerbated, . . . disciplinary disproportionality
[among students of color].” APA Zero Tolerance Task Force,
Are Zero Tolerance Policies Effective in the Schools? 64 (Aug. 9,
2006),
https://www.apa.org/pubs/info/reports/zero-tolerancereport.pdf (original version).
14
country, and that many students are harmed by
schools’ overreliance on exclusionary discipline. The
systemic problems with school disciplinary systems,
and the potential for abusing them, make it all the
more important that this Court issue clear guidance
as to the circumstances in which a school may punish a student for exercising his freedom of speech
outside of the school environment.
CONCLUSION
The Petition for a Writ of Certiorari should be
granted.
Respectfully submitted.
KIMBERLY JONES
MERCHANT
BETH L. ORLANSKY
MISSISSIPPI CENTER FOR
JUSTICE
P.O. Box 191
Indianola, MS 38751
(662) 887-6570
DANIEL R. WALFISH
Counsel of Record
WILL B. DENKER
SAGIV Y. EDELMAN
MILBANK, TWEED, HADLEY &
MCCLOY LLP
28 Liberty Street
New York, NY 10005
(212) 530-5000
dwalfish@milbank.com
Counsel for Amicus Curiae
December 2015